Convicted
of three counts of aggravated robbery and sentenced to forty
years' incarceration, appellant Antonio Thomas Elizondo
challenges his sentence and seeks a new punishment hearing.
He asserts that the trial judge considered evidence outside
of the record and that by doing so, the trial judge did not
act as a neutral officer. We address (1) the
preservation-of-error requirement, an issue the Court of
Criminal Appeals has yet to address in this context and (2)
whether the record supports appellant's contention that
the trial judge considered evidence outside the record. We
affirm.

Factual
and Procedural Background

Appellant
pled "guilty" to three counts of aggravated robbery
and testified against two men charged with participating in
the same offenses.

The
events that led to the charges began with a casual friendship
between appellant and one of the complainants, whom appellant
met while the two worked together at a pizza place. Appellant
gave the coworker rides because the coworker did not have a
car. Because appellant was living out of appellant's car,
the coworker, who lived with his mother and her boyfriend,
offered to let appellant stay in their home. The
coworker's mother also befriended appellant, offering him
food and washing his clothing.

Appellant
learned from the coworker that the coworker was expecting a
large tax refund and that the coworker intended to use the
proceeds to buy a used car. The coworker mentioned the refund
while in the presence of appellant and two of appellant's
associates whom the coworker did not know. Appellant and the
two associates hatched a plan to rob the coworker. They
planned to steal the coworker's newly-purchased car and
any of the coworker's remaining tax-refund money.

The
coworker collected his tax refund and a paycheck, receiving
some of the funds in cash and loading the rest onto a debit
card. Appellant drove the coworker to purchase the car. While
the coworker was driving back, the newly purchased car broke
down. Stranded on the highway, the coworker fell asleep in
the car. A state trooper found the coworker asleep in the
car, on the side of the highway, and realized there was an
outstanding warrant for the coworker's arrest because the
coworker had unpaid parking tickets. The trooper arrested the
coworker and took him to jail.

Appellant
and his two associates bonded the coworker out of jail. In
the process, the two associates took possession of the
property the coworker had turned over to police, including
the coworker's debit card, onto which the coworker had
loaded the proceeds from his paycheck and tax refund. At some
point, the coworker got the broken-down vehicle to his
mother's home. It was sitting in the driveway the next
day when appellant dropped the coworker off after taking him
on an excursion to Houston. Later the same day, appellant got
together with the two associates and the three of them went
to a store, where they bought duct tape, latex gloves, and
plastic bags. The three also acquired two guns.

Appellant
drove the two associates to the coworker's home, where
they carried out the robbery. The three entered the home,
waking up the coworker, the coworker's mother, and the
coworker's mother's boyfriend. Appellant and the two
associates dragged the coworker, the mother, and the
boyfriend into the living room, where they bound them with
duct tape and duct-taped plastic bags over their heads.

The
coworker immediately gave up the keys to the car and all of
the money he had, but appellant and the two associates said
that the coworker, the mother, and the boyfriend knew too
much and so appellant and the two associates would have to
kill them. The coworker and his mother kept trying to get out
of the duct tape. They were screaming. While the mother was
fighting to escape, one of appellant's associates
sexually assaulted her.

Appellant
left the scene to buy gasoline. According to appellant, he
went to get the gasoline to kill the coworker, the mother,
and the boyfriend. The coworker and the mother both testified
that appellant "was calling the shots" while these
events unfolded.

While
appellant was gone, the coworker managed to escape by
breaking the duct tape and jumping from a window over a fence
into a neighbor's yard. Appellant's associates shot
the boyfriend and the mother. Then the associates began
looking for the coworker, who was hiding outside. About that
time, the associates heard sirens and fled. The associates
called appellant, who was on his way back with gasoline, and
told him what had happened and where they were hiding so that
appellant could come get them.

Injured
from the gunshots, the mother was transported by ambulance to
a hospital, where she remained in a medically-induced coma
for weeks. The coworker immediately told police
...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.